Citizens are conscience keepers of a Government in any democratic nation, and
they cannot be put behind bars simply because they chose to disagree with the
State's policies.- Justice Dharmendra Rana.
Sending an accused in custody is a precaution, so the investigation can go on
without interruption. But many times, it is misused to harass the accused
To keep that in check, many remedies and rights are given to the arrested
person, and strict obligations are imposed on the Law Enforcement Agencies and
the Judiciary. So, the Fundamental Rights of any person wonít violate.
What is custody?
There is no legal definition of custody provided in Indian Law, but it generally
means the state of being kept by the police or kept in the jail, usually
while waiting to go to court for trial.
In the case of Chhotey Lal, v/s State of Uttar Pradesh
(1), it is observed that
the word custody in Section 27 of the Evidence Act not meant only physical
custody. If a person is under the surveillance of the police and cannot get away
from a police officer, it will also be considered custody.
In 1998, in the case of Bibachha Baitharu v. State of Orissa
(2), observation of Chhotey
Lal VS State of Uttar Pradesh is upheld, and it is also added the restriction on
person movement is also considered as custody and formal arrest and formal
custody are different.
Supreme Court, in the case of State of Uttar Pradesh v. Denman Upadhyaya(3) took
a view that when a person directly giving information to a Police Officer which
may be used as evidence against him, may be deemed to have submitted himself to
the 'custody' of the Police Officer within the meaning of Section 27 of the
Indian Evidence Act.
Laws governing the Custody
Section 57, when read with section 167 of the Criminal procedure Code, gives us
a clear picture of the procedure of custody. And also clears the types of
custody and how many days can someone be held in the custody.
Type of Custody
There are two types of Custody
- Judicial Custody:
In this person is sent to jail and the police donít have
physical custody and if they want to interrogate the accused, they have to take
the permission of the magistrate.
- Police Custody:
In this police have the actual physical custody of the
The procedure of Custody
- A person arrested by the police with or without the warrant need to be
produced before the Judicial Magistrate within 24hr. Time of travel is not
taken into account
- Police canít keep any person under their custody for more than 24hrs.
Except if it authorizes by the Judicial Magistrate.
- Officer not below the rank of Sub-Inspector will produce the accused
before the Judicial Magistrate.
- Before granting the custody, the Magistrate should make certain that the
arrest made is legal, lawful, and all the accused's constitutional right are
- The officer must satisfy the Magistrate that the arrest made was legal
- And if the arrest is not according to the law, then the Magistrate must
not sanction further custody and release the accused.
- The magistrate should make a record in writing about facts that convince
him to authorize further custody.
- Magistrate to whom the accused person forwarded for custody may or may
not have the jurisdiction to try the case.
- If he doesnít have the jurisdiction, he cannot send the accused in
custody for more than fifteen days. And if he thinks that further custody is
not needed, he may transfer the accused to the Magistrate, having such
- The magistrate has jurisdiction can extend the custody up to ninety days
if an offense is punishable with death, imprisonment for life, or
imprisonment for a term of not less than ten years.
- And up to sixty days in any other offense
- After the expiry of the Ninety- or Sixty-day period as the case may be
accused, must be released on bail only after he furnishes the bail.
- If the Judicial Magistrate is not present, then the accused can be
present before the Executive Magistrate, on whom the power of the Judicial
Magistrate is conferred.
- Executive Magistrate canít grant custody for more than seven days.
- During the fifteen-day of custody, the accused can be transferred from
judicial to police custody, or vice versa, but after fifteen days he has to
be transferred to Judicial Custody
- For the police custody presence of the accused is a must before the
- Second Class Magistrate canít authorize Police Custody unless they have
given power by the High Court.
- In the case of a woman under eighteen years of age, the detention shall
be authorized to be in the custody of a remand home or recognized social
- Writ of Habeas Corpus is not attracted when the order of custody is
passed by a competent court in a constitutional and wholly legal manner. (4)
Rights and Remedies for the accused in custody
- He has the right to know on which grounds he is being arrested
- He has the right to get a lawyer of his own choice.
- He has the right to get bail.
- He has the right to get Medical Treatment.
- An arrested person can apply for the Writ of the Habeas Corpus if he
thinks that his arrest is illegal and the procedure of custody is not
followed according to law. (5)
The exception to General Law of Custody
Section 43-D (2)(b) of the Unlawful Activities (Prevention) Act, 1967 is the
exception to Section 167 of CrPC. According to UAPA Act, !967 an accused can be
sent to custody for 180 days if certain conditions are satisfied.
Conditions are namely
- It has not been possible to complete the investigation within the period
of 90 days
- A report to be submitted by the public prosecutor.
- Said report indicating the progress of the investigation and the
specific reasons for the detention of the accused beyond the period of 90
- Satisfaction of the court in respect of the report of the public
Armed Forces Special Power Act 1958, popularly known as AFSPA, is another
exception to Section 167 of CrPC.
Section 5 of this act says that the person arrested by the armed forces should
be transferred to the officer in charge of the nearest police station with the
least possible delay, there is no time limit, mention armed forces can keep the
accused under their custody as long as they want.
Section 6 of this act says that there is no accountability on any official who
is using his power under this act, nor any suit or any other legal proceeding
can be initiated against the official. (7)
Often arrested accused complain about how they were tortured in the police
custody, and Custodial Death is not alien to the system. And often the
responsible official gets off easily without the punishment of this heinous
There are many loopholes in Indian Custodial Law. We need a strict and uniform
law that will put accountability on the officials so, they canít use methods
like torture on the accused to get out of the confession.
Indian Judiciary over time tried to cover these loopholes by passing landmark
judgments. They set the accountability and obligations on the officials by
making Medical Check-up mandatory and safeguarding the accused's fundamental
rights. Judiciary is doing its work, but it's time to bring a strong law.
Written By: Abhishek Sahu
- Chhotey Lal vs State Of Uttar Pradesh, (1953) 1954 CriLJ 1445 (India
- Bibachha Baitharu v. State of Orissa, (1991) 1998 CriLJ 1553 (India).
- State of Uttar Pradesh v. Denman Upadhyaya, (1960) 1960 AIR 1125
- Sri R.Ashok Kumar, Spl.Judicial Magistrate of I Class for Proh. & Excise
Offences, Kadapa, Judicial Custody, Police Custody Ė Recent Trends, District
- The Code of Criminal Procedure, 1973, No. 02, Act of Parliament, 1974
- The Unlawful Activities (Prevention) Act, 1967, No. 37, Act of
Parliament, 1967 (India).
- The Armed Forces (Special Powers) Act, 1958, No. 28, Act of Parliament,
So please read my blog for understanding the Law of Custody in India, and please give your valuable feedback in the comment section.